7 Future priorities
162. In assessing the extent to which the Framework
Agreement was operating effectively the Minister focused on the
fact that the NAO's investigation had concluded that the MoJ should
fully implement the contract: "If the contract was not good,
if there was no confidence in it, then surely the National Audit
Office would have said leave it".
Nevertheless, she conceded that despite the improvements described
in the previous chapter the MoJ continued to have some concerns
about performance in certain geographical areas, certain jurisdictions
with certain languages, and she recognised there was no room at
all for any complacency. She explained that Capita's priorities
were to: devise a new assessment; recruit more interpreters; and
to develop career progression within the tiers; as well as to
work with the Department to implement the recommendations of the
National Audit Office, which also included completing checks on
interpreters and the commissioning of an independent assessment
of whether the new quality standards are appropriate. She further
acknowledged that to get the contract operating to the standard
the Department would like to see would require working "creatively
and carefully and cleverly".
In this chapter we consider each of these areas and draw our own
conclusions about the ongoing priorities for the MoJ and Capita
Further recruitment of interpreters
163. Ms van Loo described what ALS was doing
to further improve fulfilment rates by attracting new interpreters
based on the information it had collated on the languages required
and locations where they are required:
"We have a recruitment plan in place, which
we are executing at the moment, which involves building relationships
with awarding bodies and universities. We also work with the criminal
justice organisations and ask for their support in terms of the
interpreters that were working previously within the system. They
may contact those interpreters and ask if they would be interested
to work for us, so that is another opportunity for us. That has
been very successful."
In the week commencing 5th November 2012,
20 new interpreters were recruited.
164. We are surprised that
there is no absolute target of numbers of interpreters for the
Before the MoJ seeks to rollout the operation of the agreement
fully to the Crown Prosecution Service it must ensure that Capita
TI has determined a defined minimum necessary to deliver that
work. We also consider it necessary for the MoJ to undertake or
commission some work to establish more clearly the requirements
of the CPS than was done in respect of HMCTS.
The absence of assessments
165. The MoJ described the backlog in assessments
as "challenging" to resolve because of difficulties
between ALS and its independent contractors in marking assessments,
and the lack of qualifications to benchmark against for some of
the rarer languages.
166. As we concluded our inquiry Capita TI and
MoJ were in the process of agreeing a new approach to assessment
as they conceded that the one in the contract was not feasible.
Capita's proposal is for an interview based approach to the verification
of interpreters' experience within the criminal justice sector,
followed by an induction process, including a work shadowing assignment,
and adherence to the code of conduct.
The MoJ gave Capita considerable time to make alternative arrangements
for assessment. We support
the new approach planned for assessing interpreters provided that
Capita TI ensures that any quality assurance elements that underpin
it are appropriately tight and rigorously monitored.
Developing career progression
167. Capita is required under the Framework Agreement
to ensure that those on its supplier list have access to continuous
professional development. This was not compulsory under the previous
arrangements but membership of a professional body usually comes
with the expectation that an individual will actively maintain
and update their skills; this can be time consuming and costly.
In evidence to our inquiry on the budget and structure of the
Department ALS made the following reference to its approach to
quality assurance: "Assigning qualified and experienced linguists
to assignments and insisting on continuous professional development,
while reducing operational inefficiencies, remains our focus.
We are determined to get the service running at a level that meets
the MoJ's requirements, provides transparency of opportunity for
linguists and fully supports the justice sector."
Other than a reference to familiarisation training by the NAO,
we received little evidence on how Capita is satisfying this requirement.
When we asked Capita for further information on this matter they
explained that criminal justice workshops had been introduced
for interpreters already familiar with the criminal justice system,
and who have previously undertaken work in the sector, for example,
those who had been working for the police but not in courts.
We heard that this constituted very basic training delivered by
someone without experience of legal training.
It appears that no work was under way to provide access to professional
development until recently. As we concluded our inquiry we learned
that Capita had recently "engaged an industry expert"
in identifying and preparing training for interpreters, and we
heard that some training needs had been identified through the
workshops described above.
dissatisfied that Capita TI has failed to provide for those on
its supplier list a proper programme of professional development
almost one year after it began operating under the Framework Agreement.
Completing monitoring checks
168. There was apparent uncertainty in our evidence
as to whether the aim of the contract was merely to act as a booking
system or to provide a quality of service, which would include
monitoring the quality of interpreting and managing regulatory
aspects as well as the logistics. Mr Parker attempted to explain
to us Capita's role in quality assurance:
"We are responsible for the quality of the interpreter
that attends. As part of this, what we can't actually warrant
is what happens when the interpreter is in court. If we then received
issues from that court about the quality, we would investigate,
and, as has happened in some cases, the ultimate sanction would
be to remove the interpreter from the available list" and
all we are doing is matching someone's qualification
against the tiering that was agreed, [with the MoJ], at the time
of the contract."
169. Since the NAO highlighted numerous difficulties
with ALS' own approach to quality assurance, and the MoJ's initial
failure to provide sufficient arrangements for independent monitoring,
there is now regular monitoring by MoJ. For example, the MoJ is
now routinely inspecting Capita's register of interpreters and
the work it has done to check qualifications and tiering. Mr Handcock
suggested that this gave "a very high degree of assurance
about the people on their books and the people that they are supplying.
That wasn't the case in the beginning, but we have put that right."
As we noted above Capita also assured us that its investment had
enabled it to rectify inadequate processes and procedures. The
Minister hoped that Capita TI would be delivering against its
performance indicators by March 2013, the end of the financial
170. Nevertheless, Ms Lee and respondents to
our e-consultation, among others, continued to express doubt that
the criteria for qualifications at the appropriate tiers had been
met and verified.
These concerns may well have justification. On 24th
October 2012, the MoJ audited a sample of 30 interpreters registered
with Capita TI; one-third of the sample required further documentation
to prove their qualifications at the appropriate tier and one
did not have appropriate security checks.
Since the oral evidence hearing took place, on 1 November, Capita
TI sent emails to some workers registered with it, asking them
to provide proof.
171. It is clear that the
contractual terms regarding the appropriate qualifications and
CRB checks for those servicing the contract continue to have been
flagrantly disregarded until very recently. We are dismayed that
a contractor should apply such an apparently lackadaisical approach
to verifying qualifications and executing appropriate vetting.
While there have been improvements these have taken a very long
time to achieve, even with the considerable performance improvement
resources at Capita's disposal. We are concerned that the Ministry
of Justice has so recently found evidence that questions persist
as to whether interpreters on the supply list are meeting appropriate
quality requirements in terms of having properly verified qualifications
and experience as defined under the tiered system.
We are not yet satisfied
that there are sufficient safeguards currently in place to ensure
that only suitably qualified interpreters are providing services
172. We welcome the Department's
efforts to quality assure the work of Capita-ALS in implementing
the Framework Agreement, but we believe that, in the absence of
an independent regulator, this mechanism should have been in place
from the start and we are concerned that regular monthly checks
continue to be necessary some nine months or so into the operation
of the contract. The
Ministry of Justice has shown ALS, and subsequently Capita TI,
considerable leeway in not rescinding the contract despite ongoing
breaches of their obligations under the Framework Agreement, and
has presumably had to devote more resources than expected to close
monitoring of the contract. We ask the Ministry of Justice in
its response to this report to provide us with an estimate of
the administrative costs of providing such a considerable level
of oversight of the contract.
Enduring concerns about quality
173. While it is probable that the poor quality
of services provided stemmed partly from a failure on behalf of
ALS to put effective systems in place to underpin its delivery
under the Framework Agreement, the evidence indicates that there
are more fundamental problems within the new arrangements which
could have a more enduring detrimental impact on interpreting
in the justice sector. We consider these concerns from the perspective
of the judiciary, magistracy, legal professionals and the interpreter
REGAINING THE CONFIDENCE OF THE
JUDICIARY, MAGISTRACY AND LEGAL PROFESSIONALS
174. The Magistrates' Association and the Law
Society were in agreement that the service continues to require
improvement with regard to the quality of interpreters provided.
Mr Fassenfelt was clear that the existing arrangements did not
give magistrates confidence:
[confidence] starts to leak away, as officers of the court, we
will have serious concerns in the future about interpreting services
] [The Magistrates'
Association] feel[s] that for magistrates to gain that trust and
confidence there needs to be some form of divide between the [regulatory
and service provision functions] [
] There needs to be independent
monitoring of the contract. I do not see that happening now. I
see the providerthe contractordoing the monitoring.
To me, that does not give the confidence that we need as a magistracy."
The Senior Presiding Judge believed that the quality
of ALS interpreters remained variable, and that this was continuing
to cause disruption to court proceedings, and meant that the general
view of tribunals was that arrangements were not yet as reliable
as the old arrangements.
These fears were similarly expressed by other stakeholders. Annette
Elder of Elder Rahimi Solicitors, who specialise in immigration
and asylum, said: "we are returning to a situation of unskilled
and inexperienced interpreters being used which is simply unacceptable
and shameful in the context of particularly asylum and human rights
felt that the higher fulfilment rates and lower complaint rates
should be sufficient to restore confidence.
175. At the time of the MoJ's
initial memorandum we heard that there were remaining issues for
frontline staff and the judiciary which the Department was seeking
to resolve with Capita-ALS. We asked for clarification of the
nature of these matters and were told that together they were
reviewing quality standards and seeking to attract additional
qualified interpreters to the work.
The MoJ has also been working to improve internal processes, for
example, relating to financial assurance and guidance on complaints
and compensation, and to produce more detailed guidance on appropriate
use of interpreters, presumably related to the tiering system.
We also heard from the Senior Presiding Judge that there were
two judicial representatives on the HMCTS project board which
is working to manage the contract.
176. Capita explained that there
was a continuous process of improvement, underpinned by ongoing
dialogue with MoJ and its customers:
"We continue to work closely
with the courts, and, actually, where we have worked very closely
with the courts, such as City of Westminster, we are now at 99.5%
fulfilment. So we believe the contract is improving all the time.
Are there certain things that we'd like to change? We talk to
the Ministry of Justice all the time about that, about things
both ways, about where we think improvements could be made, but
until our customer tells us otherwise we will continue to deliver
177. Notwithstanding the
progress that has been made, we consider that the Ministry of
Justice and Capita TI have much hard work ahead of them to restore
the trust of sentencers and the legal profession. We
recommend that the MoJ considers negotiating with Capita TI to
replace the distance indicator with an indicator of quality, for
example, a user satisfaction measure.
Ongoing inadequacies in the complaints
178. We received criticisms about the absence
of an effective accessible complaints mechanism, and were told
of instances in which there had been no feedback on complaints
that had been made to the MoJ about poor service provision.
For example, one of our witnesses, Matthew Scott, a barrister
practising in criminal law, explained that he had made a complaint
directly to the MoJ but had received no response.
179. Mr Atkinson of the Law Society considered
that an alternative mechanism for complaints would be very helpful.
"It would give some evidence base and alleviate
some of the difficulties that we have experienced in giving our
evidence, which has been primarily anecdotally based. We would
then have a proper basis for looking at and analysing the problems,
including the problems for those providing the service. It would
allow us to look at whether there are geographical differences
in the problems and at the numbers. If there were somewhere that
lawyers could complain to, whose specific function was to receive
those complaints, it would encourage them to believe that there
was a reason to make a complaint, with the hope that that would
lead to some improvement. If there were a direct service for them
to report to, I think it would also lead to a higher level of
reporting of problems."
180. Mr Handcock considered that the existing
system was sufficient in that professional stakeholders could
complain through the MoJ:
You have to bear in mind that Capita are our contractors
and we don't think it would represent an appropriate standard
of service to people who use the courts for us to invite them
to pursue their own complaints with our contractors. We think
that's our responsibility. We think it's our responsibility too,
because when someone has a complaint about the provision of a
service around a court hearing there may be any number of explanations
for that and it might not be a Capita issue. We need to know that
people are raising those complaints, first of all, so that we
can ensure that it isn't some part of the court process that has
caused the problem and, secondly, to ensure, for example, that
if an interpreter has been found to be inadequate we know that
as well. But, where that complaint is made by a legal professional,
we will then put that complaint on to the complaints system.
In subsequent written evidence the MoJ committed
to including the legal profession in its revised communications
strategy and ensuring that they are aware of the best route for
raising concerns with HMCTS.
181. As complaints can only be submitted by those
with access to the online portal there is no publicised mechanism
for solicitors and barristers to register problems with interpreters
supplied by ALS; this also denies end users of interpreting services,
including defendants and witnesses, and members of the public,
the right of complaint. Those professional stakeholders who do
not have access to the online portal are not sufficiently aware
that there is an alternative route for complaints directly to
the MoJ. We recommend that
the MoJ establish a dedicated phone number for registering complaints
about interpreter services for those stakeholders who do not have
access to the portal, and publicise the existence of this complaint
route. Data on the number of complaints received by this route,
and the proportion of such complaints that are fed through to
the portal, should be published alongside statistics on complaints
made directly through the portal itself.
REGAINING THE CONFIDENCE OF PROFESSIONAL
182. Many witnesses from the interpreter community
feared that the combination of the tiered system and the reduced
levels of pay would have a sustained detrimental impact on the
interpreter pool. It was evident from our discussions that there
remain fundamental concerns about: the assessment process; remuneration;
quality standards; a lack of independent regulation; a lack of
transparency regarding control mechanisms; and the sustainability
of professional interpreting in the justice sector. The Minister,
Helen Grant MP acknowledged that it was "very, very important"
for the Ministry to seek to build a "very good and close"
relationship with the interpreter community to enable them to
"move forward constructively together" and she agreed
to do "whatever we can to make that happen".
the Minister's willingness to engage in discussion with the interpreter
community and we will monitor the outcome of these discussions.
183. We were told that interpreters would continue
to be reluctant to work until both standards and pay issues had
been resolved. There is certainly convincing evidence that the
sustainability of the system may be threatened. For example, the
system was intended to improve the level of continuous professional
development, yet some witnesses expressed concerns that reductions
in pay would be likely to have the opposite effect as they would
reduce interpreters' incentive to undertake training and development.
The University Council of Modern Languages counselled that the
arrangements had the potential to create an enduring diminution
of quality as in the future interpreters were unlikely to go to
the expense of training to a high level if it is not requisite
of employment in the justice sector.
Indeed we were informed that there had been a "dramatic fall"
in the take-up of the Diploma in Public Service Interpreting in
the last year.
184. When we asked our witnesses representing
professional bodies and the national register what could be done
to recover the situation, they concurred that in their view the
Framework Agreement was "unsalvageable".
Mr Rosenthal explained this from ITI's perspective:
"In our professional view, as a professional
body, the framework agreement as it stands is unsalvageable. I
think it contains many false premises. The bottom line is that,
under this framework agreement, existing professional qualifications
have been ignored. The rates of pay that are offered under it
are so low that qualified professionals are no longer able or
willing to continue working in the court system. There are so
many different concerns about it that we must recognise that the
framework agreement as it stands is part of the problem and must
be replaced by something better."
185. One of the most fundamental concerns expressed
to us by NRPSI and PIJ was that they regarded the functions for
which Capita-ALS was responsiblework provider; supplier;
regulator; assessor of qualifications and competence; registrar
of suitably qualified and competent interpreters, and disciplinarianas
fundamentally conflicting; in their view this enabled ALS to dictate
recruitment, pay, price, quality and other factors, preventing
fair competition and disadvantaging other existing and new suppliers.
Furthermore Mr Sangster told us he believed that the resulting
lack of independence in the monitoring of quality, competence
and qualifications, and dealing with complaints potentially provided
an opportunity for the contractor to "cloud, fudge, miss
or ignore some or all of these issues" and consequently made
it more difficult for the MoJ to monitor the effectiveness of
the delivery of the service.
In his view the Framework Agreement therefore needed to be "revisited
and stripped apart".
Ms Lee stated that she believed that the disciplinary function
and the regulatory function, in particular, were not appropriate
functions for a commercial agency and that these should be exercised
independently, by independent bodies.
PIJ went as far as to propose that the previous system be reintroduced,
while a feasible alternative was developed in proper consultation
with interpreters' organisations and the NRPSI.
186. One example of a potential problem relating
to the disciplinary function is that professional witnesses are
called upon to review interpreting when quality or accuracy has
been questioned; where a reviewing interpreter is reliant for
work on the same agency that engaged the professional interpreter
whose work is subject to review, there may be perceived pressure
not to provide a negative report as this could impact on future
Another example of the potential problems of ALS being self-regulating
related to the complaints system which we discussed in the previous
chapter. Ms Lee told us:
The professional institutes have codes of ethics
and disciplinary frameworks and procedures in place. Those disciplinary
frameworks include an appeals procedure. The full framework and
procedure is published; it is transparent, and all parties know
what to expect. Moreover, anybody is in a position to make a complaint
to those professional bodies. With the new regime, under Applied
Language Solutions/Capita, as far as we are aware and have been
able to ascertain, there is no facility for anybody who is not
a court employee to put in a complaint. The only channel for complaints
is through the online portal.
187. Not surprisingly Capita TI did not agree
that the contract was unsalvageable. Ms van Loo told us that she
saw the various functions Capita provided as complementary.
The Minister similarly rejected this notion as the National Audit
Office's investigation had concluded that the Department had very
good reason to change the original contract and that the new arrangements
should be fully implemented: "If interpreting organisations
are saying it's unsalvageable and it is not good, then I am a
little bit mystified now."
188. Our witnesses representing the professional
interpreter community and the national register also suggested
that there must be a separation of some of the functions currently
undertaken by the contractor. For example, Mr Sangster wished
to see "an independent registrar to vet and approve the qualifications
of interpreters employed under the FWA, and to deal effectively
and impartially with complaints."
One interpreter drew parallels with the Office of the Immigration
Services Commissioner for immigration advisors or the Financial
Services Authority for those providing mortgage and financial
189. When we put these suggestions to the MoJ
"the Framework Agreement requires all interpreters
to be qualified dependent on the tier. These qualifications are
obtained independent of Capita/ALS from recognised educational
institutes, examining boards or regulatory bodies. The customer
and its stakeholders are a key element of overseeing the services.
If the customer (MoJ, ACPO etc) is not content with the quality
and skills of an interpreter then they can remove them from the
register. However, interpreting and translation services cover
many sectors and there would be many issues in regulating interpreters
and translators. Whilst we have not given full consideration to
the possibility of an independent regulator and arbitrator, the
NAO recommendations were for the contract to be implemented fully
with independent advice on the quality assessment to be obtained.
We are working to implement these recommendations with Capita
and the interpreting community, as well as other justice sector
190. The failure of Capita-ALS
to implement appropriate safeguards until, following the National
Audit Office recommendations, they were required to do so by the
Ministry of Justice, has reinforced the concerns of the interpreter
community about the fact that the service provider is responsible
for almost all functions.
certainly taken some time, and the impetus of the NAO's investigation,
followed by more rigorous monitoring by the MoJ, to highlight
exactly where the problems lie and to see real progress in performance.
191. Our evidence suggests
that the most important priority for the MoJ is to establish whether
the strengthening of quality assurance arrangements, and other
work that has been done to remedy other problems, are sufficient
to improve the quality of interpreting services provided to HMCTS
under the Framework Agreement. We share the National Audit Office's
concern that the existing safeguards of quality within the system
may not be fit for purpose; if this is not addressed it is likely
that the confidence of important stakeholders, including the judiciary,
magistracy and legal professionals, will continue to be undermined,
and that many professional interpreters will continue to be reluctant
to provide their services. We
support the National Audit Office's recommendation that these
standards should be independently reviewed and look forward to
seeing the results of that assessment.
192. Our evidence suggests
that the concerns of many members of the interpreter community
will not be dispelled by insipid and general responses from the
MoJ on such issues as remuneration, and rebuilding trust, for
example. It is likely that concrete safeguards will need to be
negotiated, for example, following the independent review of the
tiered system of qualifications proposed by the NAO, a proposal
that we also endorse.
The language used by the Minister in describing the path
that the MoJ must take to move forward, appears to illustrate
the Department's acceptance that the Framework Agreement requires
some renegotiation, albeit through careful and creative cooperation
with Capita TI. The Ministry and Capita TI must prove that the
Framework Agreement is capable of attracting, retaining and deploying
an adequate number of qualified and competent interpreters to
meet the requirements of the courts and other agencies. This will
also require the professional interpreter community to work flexibly
with the Department in seeking to find an acceptable way to restore
their services to the justice sector. It is essential that this
is achieved before fully extending the reach of the contract to
other justice agencies.
193. We believe that ultimately
there should be a regulation system that is independently organised
to select and classify interpreters for the appropriate level
of court and tribunal work, assuming that some form of tiering
remains in place following the review, and ensure that they are
held accountable for delivering to the standard required. In the
meantime it is important that the functions of Capita TI in delivering
quality assurance are clarified, and if necessary, further strengthened.
In addition we consider that there is a strong case for a further
review of rates of remuneration and modelling of the potential
impact of increasing these rates, particularly for highly qualified
interpreters, on registration rates.
The European Directive
194. The National Agreement complies with Articles
5 and 6 of the European Convention on Human Rights (ECHR) i.e.
the right to be informed in a language one understands of the
reasons for arrest and the right to a fair trial incorporating
the right to have the free assistance of an interpreter.
PIJ and NRPSI expressed concern that under the Framework Agreement,
the UK might be in breach of the requirements of EU Directive
on the right to interpreting and translation during the criminal
justice process [Directive 2010/64/EU] which must be transposed
into domestic law by 27 October 2013.
In particular their concerns related to the ability to adhere
to Articles 2, 3 and 5 of the Directive, which ensure that interpreting
and translation is of a quality sufficient to safeguard the fairness
of the proceedings and that a register or registers of independent
translators and interpreters who are appropriately qualified is
established. This view was supported by Fair Trials International,
barrister Matthew Scott, the European Legal Interpreters and Translation
Association (EULITA), whose members include ITI and ACPI, and
the International Association of Conference Interpreters.
195. The NRPSIwhich is already recognised
by the European Commission as an independent register and voluntary
regulatorproposed that, in order for the UK to comply,
the Framework Agreement would have to be amended to the effect
that face-to-face interpreters should be registered with NRPSI.
The Minister told us that she was "quite satisfied"
that the current contract met the standard that will be required
under the EU directive.
196. The transposition into
UK law later this year of EU Directive [2010/64/EU] on the right
to interpreting and translation during the criminal justice process
will prove a timely test of the appropriateness and robustness
of quality safeguards embedded in the Framework Agreement and
the efforts that have been made to strengthen them in the light
of the reports of the National Audit Office and two parliamentary
293 Q 216 Back
Q 208 Back
Q 126 Back
Ev 64 Back
Ev 30 Back
Ev 64 Back
Ev w82, Ev 38 Back
HC (2012-13) 97-II, Ev 171 Back
Ev 64 Back
Ev w3; see also Ev w17 Back
Ev 64 Back
Qq 164, 167 Back
Q 192 Back
Q 208 Back
Ev 120; see Ed2005 and Dmn, respondents to online consultation,
see Annex. Back
Ev 69 Back
Q 57 Back
Qq 55-58; see also Ev w17 Back
Ev 108 Back
Ev w13 Back
Q 216 Back
Ev 69 Back
Ev 108 Back
Q 180 Back
Ev w17, Ev 109, Ev 34, Ev 47 Back
Ev w9; it should be noted that Mr Scott's wife is a professional
Q 52 Back
Q 220 Back
Ev 69 Back
Q 231-232; "Justice Minister invites interpreters to crunch
meeting" Involvis press release,1 November 2012 Back
Ev w25 Back
Ev w79 Back
Ev w82 Back
Qq 24-26 Back
Q 24 Back
Ev 109, 42, Q 24 Back
Ev 57 Back
Q 29 Back
Q 24; see also Mr Sangster Q 29 Back
Ev 109 Back
Ev w28 Back
Q 33 Back
Q 135 Back
Q 222 Back
Ev 57 Back
Ev w14 Back
Ev 69 Back
Ev 42 Back
Ev 109, 42 Back
Ev w1, 5, 9, 76 Back
Ev 42 Back
Qq 224-225 Back